Advocacy Alert: A ground-breaking Federal Court of Appeal decision impacts all retired military personnel
April 13, 2016

alert2.jpg Canadian Patent ruling locks out retired Canadian Armed Forces (CAF) Veterans


++ Action Item: Please review the article below, “Forever a Public Servant” in support of ongoing advocacy, Patent Infringement Advocacy Alert: Canadian Patent ruling locks out retired Canadian Armed Forces (CAF) Veterans from advancing Canada’s innovation nation.



FOREVER A PUBLIC

SERVANT?


A ground-breaking Federal

Court of Appeal decision

impacts all retired military

personnel


by Edward W. Claxton (Esprit de Corps Vol :23, Issue 3)


A GROUND-BREAKING COURT decision received

scant media coverage, but it could render a tremendous

impact on retired military personnel. In February, the

Federal Court of Appeal ruled that anyone whose

name is on the Canadian Armed Forces Supplementary

Reserve List — even if they receive no pay or benefits

— is still a public servant.


At issue is the case of Louis Brown, who retired from the

military in 1993 to start his own company that was in the business

of manufacturing chemical resistant shelters. In 1999, Brown

patented his technology for both Canadian and U.S. markets.


Brown offered his shelters to Public Works in 2009, but they

promptly took his patent and contracted a U.S. firm to build

the shelter instead. The rationale offered by Public Works, and

upheld by the Federal Court, was that since Brown was still listed

on the Supplementary Reserve in 1999 when he applied for the

patent – he was technically still a public servant – and therefore

the patent belonged to the Crown.


Following is the letter barrister and solicitor Edward W. Claxton

wrote to the Ministers of National Defence, Veterans Affairs and

Justice, outlining the dangerous precedent this ruling has on

members of the Canadian Armed Forces.


ON MARCH 13, 2016 I heard the news concerning the Federal

Court of Appeal Ruling in the matter of Louis Brown v Canada.


I was a member of the 2PPCLI cadets and became a Master

Cadet. When I was finished with the cadets I joined the 20th Field

Artillery Militia Regiment in Edmonton. When I moved to Ottawa

in 1966, I transferred to the 30 Field Artillery Militia Regiment in

which I served approximately five years. My late father, Norman L.

Claxton, CD, was a “boy soldier” who, upon turning 18, entered


Louis Brown, military veteran and entrepreneur, is in a battle with the

government over who owns his patent for inventing a chemical-resistent

material. Brown retired in 1993 but the government says he is a “public

servant” as he is on the Supplementary Reserve List. (nor environmental)

active service in January 1945. He continued in service after WWII

and served two terms in Korea. He remained in the military until

his retirement. My grandfather Edward J. Claxton served with the

2nd Canadian Battalion in WWI. He was twice wounded. He was

with that battalion on its entry into Germany after the armistice. He

continued in the militia after the war and became the Regimental

Sergeant Major of the Brockville Rifles.


As a militia veteran, I was apprised of the Supplementary

Reserve List. So far as I am aware, the only purpose of the Supple-

mentary Reserve List is to have an inventory of trained personnel.


The only obligations are for call up if one has special skills or

abilities needed by the military or, in case of a declaration of war,

a person on the Supplementary Reserve List (commonly known

as the Zed list) can be called up for the defence of Canada, a role

which I would have undertaken if our country needed my services.

“As a lawyer, I will refrain from making any comment on the faculties of

judgment exercised by the Federal Court or Federal Court of Appeal.”


That the Government of Canada would stoop so low as to

resort to the Public Service Invention Act to claim rights to a

veteran’s intellectual property is disgusting. With all due respect

to the Federal Court of Appeal, I feel that their judgment is

wrong in law.


It would be better for everyone if the Government of Canada

would forth with disavow this judgment and make it clear, by legis-

lation or regulation, that a person’s status on the Supplementary

Reserve List does not constitute one as being a “public servant”

for the purposes of the Public Service Invention Act or any other

Act. If one is called to active service then one has the status of


a public servant. To assert that a person on the Supplementary

Reserve List is a public servant at all defies common sense;

indeed, it is nonsense.


For one’s service to Canada in the military a person apparently

becomes disentitled to intellectual property at the whim of the

government! You may rest assured that I will do my utmost to “rally

the troops” to protest this outcome. I am going to do everything

in my power to excoriate the government for this outrageous and

unlawful appropriation or expropriation of intellectual property. In

a ‘free and democratic society’ it is unacceptable for the govern-

ment to expropriate the intellectual property of a citizen without

compensation. To do it on the pretext that the person is a “public

servant” because of his or her status on the Supplementary


Reserve List is an affront to every veteran in Canada.

As a lawyer, I will refrain from making any comment on the

faculties of judgment exercised by the Federal Court or Federal

Court of Appeal. If, however, I were advising a client in a similar

matter I would be advising an appeal.


As regards the Government of Canada, I have no hesitation

in denouncing, in the strongest possible terms, its unmitigated

duplicity in asserting that retired military personnel are public

servants because of their status on the Zed List.


I have already taken my first step, to let Mr. Brown know that

I support him and that I will be willing to contribute funds toward

an appeal to the Supreme Court of Canada.